Analysis: Legislating, From Business Class to Coach

Two bills working through the Texas Legislature this week illustrate the random swings of politics and influence as well as anything so far this year.

You could spot lawmakers’ favorites by the receptions they got.

The first, favored by Berkshire Hathaway, is on an express train through the Legislature after a visit by that company’s famous chairman, Warren Buffett.

The other, a proposed replacement for the Senate’s “bathroom bill,” was the subject of a long hearing conducted during hours favored only by vampires, musicians, barflies and the Texas House State Affairs Committee. In spite of the differences from the version that passed through the Senate and Gov. Greg Abbott’s sprinkling of praise on the House proposal, that legislation is in dire trouble.

It might reach the full House for a vote between now and the legislative session’s final gavel on Memorial Day, and the San Antonio Spurs might win the World Series.

Berkshire Hathaway wants an exception from the state law that prevents vehicle manufacturers from owning dealerships. The company owns 81 car dealerships, including 29 in Texas, according to last year’s annual report. It also owns Forest River, a maker of recreational vehicles, and has a large investment in BYD Co., an electric-car maker in China.

After Buffett’s visit, legislation that would create that exception got a ride on a rocket: Sen. Kelly Hancock, R-North Richland Hills, got permission to file the legislation on Tuesday, and it was referred to the committee he chairs — Senate Business and Commerce — the same day. On Thursday, Hancock’s committee heard the bill and voted it out. It’s bound for the Senate floor.

Yes, that’s weird. Legislation that would let Tesla, a California maker of electric cars, sell its vehicles was filed on March 10, sent to Hancock’s committee 18 days later, and still hasn’t been scheduled for a hearing.

The Berkshire version is for companies that own dealerships that don’t sell cars they make. Tesla wants to sell its own cars. That’s the kind of distinction lawyers are paid to conjure.

They’re good lawyers, though. The car dealers working to block Tesla are not doing the same to Berkshire. Tesla’s not one of them, but Berkshire is.

Contrast that relatively quiet jet-propelled skateboard with the slow, loud march of legislation that would block local regulations protecting transgender Texans who want to use the public restrooms that match their gender identities.

Lt. Gov. Dan Patrick made a priority of the legislation and has worked hard, and very publicly, to promote it. House Speaker Joe Straus has put about the same amount of effort into stopping it.

The fate of the bill could depend on whether it comes to a public vote.

There’s almost no way to get it to the House floor in any form — compromise pending or not — without forcing House members to vote directly on the Senate bill that Straus has so publicly opposed.

This risks wandering a few feet into the weeds, but it would be a simple matter — and completely predictable — for someone to offer the Senate bill as a substitute to whatever version the House presents.

That’s exactly what Patrick and other promoters of this legislation want; it’s exactly the sort of vote House members elected Straus to avoid. Private opposition to legislation is a lot easier, as a political matter, than public opposition; this is an issue where the results of a secret vote would probably be quite different from the results of a public one.

Left to their own, many Republican House members either don’t want to vote on the bathroom bill or actually oppose it. Their voters are split, with conservative activists on one side and conservative businesses on the other. Why choose?

But forced to vote, they’ll have to check their political calculators, rethinking their own positions — or misgivings — to keep their most conservative voters happy. District-by-district polling results have, in fact, been one of the strongest pitches for the Senate bill.

If only they could harmonize business and voters, clearing the way for legislators to stick with all of their constituents instead of picking sides. That’s the logic behind state Rep. Byron Cook‘s plea for businesses that oppose the bill to testify. The House needs the fortification.

You can analyze these bills — Buffett and bidet — without counting votes. Just watch the way they’re considered.

Holding hearings in the middle of the night, as the House and the Senate both did with the bathroom bill, is functionally the same as closing the hearings. Yes, some people soldier on — one couple testified on the bathroom bill this week while holding their sleeping 7-year-old transgender child.

But Texas lawmakers don’t make CEOs and other big shots — or their children — wait until 2 in the morning to say their piece. They shouldn’t do it to regular Texans, either.

This isn’t a new practice in the Texas Legislature. That State Affairs panel in the House has been famous for overnight hearings on touchy social issues for years. If it’s controversial, bring your bedroll.

Tradition is no defense. The Senate Finance and House Appropriations committees don’t work all night, and they’ve got the most complex legislation of any session. There’s no reason to meet all night when you haven’t worked most Fridays or any Saturdays or Sundays during a legislative session. It’s just a sign of institutional disrespect for people willing to come to Austin to try to talk to their elected servants.

It’s also a dead giveaway: The fast legislative trains move in daylight, the slow trains at night.

Disclosure: Tesla has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.